It’s an inevitable and natural consequence of globalisation. The increase in the movement and the settlement of Indians all over the world is phenomenal and is bound to increase in all the fields of life - industry, commerce, business, education, etc. Marriages between Indians and foreigners have become much more common.
As a natural consequence, not just commercial and property disputes, but even matrimonial disputes having international aspects have seen a significant increase. The litigating parties are in two different countries The jurisdiction of the courts in foreign countries is invoked and the orders are granted by the courts affecting the parties in India who in many cases are not even aware that some cases are filed against them and orders are passed. The knowledge is obtained when the order passed by the foreign court is sought to be implemented or enforced with the help and assistance of the Indian Judicial machinery. Maybe the bailiff of the court or in some cases, it may be the Police and even CBI, who try to enforce the foreign judgement in India. The affected party is taken by surprise and then the legal proceedings thereafter can be extremely arduous and emotionally taxing, not just for that one person but for the entire family.
There may or may not be any time to take immediate or instant remedial measures. It's necessary to know the legal position in such cases. The first question will be as to how the foreign court can pass any order affecting an Indian citizen and why then the Indian court should help the enforcement of the order of the foreign court. Does the Indian citizen not have any rights against such foreign orders? Can the foreign court pass an order without hearing the Indian citizen? And, do the laws of that foreign country apply to him?
To begin with, it is important to understand that, our legal system recognises the validity of the orders of the foreign courts and also its own obligation to assist in the execution or enforcement of such orders. At the same time, it is also a crucial aspect to understand that no provision in the law is without any procedure to be followed. If the law specifies that a certain has to be done in a particular manner, then that procedure has to be strictly followed. Even for the enforcement of foreign awards, the procedure and the conditions for the enforceability of the orders in India have to be followed very particularly.
Section 13 of the Code of Civil Procedure, 1908 (CPC) provides for enforcement of the orders of the foreign courts. Many factors are involved before the foreign judgment could be enforced in India. The Laws of both countries are required to be considered. The court in the foreign country must have had jurisdiction, as per the local laws, to pass an order against the Indian. And, the Indian Court will have to determine whether both the parties have voluntarily and unconditionally subjected themselves to the jurisdiction of the foreign court. The judgment must be passed in a contested matter, which is decided on merits. If the judgment is not decided on merits, then it will not be treated to be conclusive as between the parties and will not be binding on the Indian citizen. This was in substance, the view of the Telangana High Court in its judgement reported at (2000) 2 AP LJ 20 (SN). Another consideration for the Indian Courts is to determine the implications of any treaty that may exist between India and the said foreign country, whose court has passed the order challenged before it.
Indian law says if the judgment is procured by fraud or on the incorrect interpretation of the Private International Law or is not passed on merits or on refusal to recognise Indian Law or is opposed to the principles of natural justice or that the claim is founded on the breach of any Indian law, then the Indian courts will not consider such judgment as conclusive and will not act on it or assist in its implementation or execution.
Our Indian legal system prevents the executing court to go behind the decree (a decree is an order/judgement in a specified format). The decree/order of the foreign court cannot be challenged by a separate proceeding in India. However, the executability or enforcement can be challenged on certain limited grounds which are not related to the merits of the matter but are in the nature of the procedural lacunae or any fraud or the defendant having no concern at all with the subject matter of the suit, or that he was wrongly impleaded, etc.
Section 13 of the CPC, also specifically provides that the judgments of the foreign courts which are not conclusive will not be enforceable In India. The courts, therefore, are required to see if the foreign judgment is conclusive or not.This is a sine qua non.
In one matrimonial case in India, the parties were originally living in the USA. In this matter, the issue was also regarding the custody of their child. The father brought the child to India. The mother filed a case in the USA alleging that the father had removed the child from her custody in violation of the order of the court and thus was liable to be dealt with for contempt of court. The US court requested for a Red Notice which was issued by the INTERPOL and was sought to be served in India. The Red Notice and the arrest warrant were challenged in India on several grounds. One of the main grounds was that the notice was not issued by following the procedure of law and there were other procedural lacunae. The Supreme Court of India upheld the challenge and the notice was not enforced and so also the arrest warrant of the US court. This is only illustrative of the fact that the order of the foreign court is not necessarily enforced or can be compulsorily executed in India. There are many safeguards. The most important is that if there is a grievance of the violation of the Fundamental Rights or any other Constitutional rights, the Indian courts will certainly look into the grievance and decide the legality of the issue of the enforceability of any order against any Indian citizen by a foreign court. The Indian courts will not decide whether the foreign judgment is right or wrong or whether it is legal or not. The enforceability will be the only issue.